Review of the Police Powers (Drug Detection Trial) Act 2003 - NSW ...

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In addition, a number of non drug-related charges were laid including 12 for drink driving. Police also issued more than 112 traffic infringement notices. Court outcomes At the time of finalising this report: • Sixty possess prohibited drug charges had been determined at court. Twelve charges were dismissed without proceeding to a conviction. One charge resulted in the person receiving a 12-month section 9 good behaviour bond. The remaining 47 charges resulted in fines ranging from $75 to $750 with an average of $311. • One possession of equipment for administering prohibited drugs charge was dismissed without proceeding to a conviction and the remaining eight charges resulted in fines ranging from $80 to $300 with an average of $150. • The one drive while under the influence of drugs charge resulted in a $600 fine and a six-month disqualification from driving. • Two supply prohibited drug charges involving 22.3 and 426 grams of cannabis had been determined at court. One resulted in a $1000 fine and a two-year section 9 bond to be of good behaviour. The other resulted in a $2000 fine and a six-month suspended gaol sentence. Another supply charge was withdrawn with the person being convicted of possess prohibited drug and receiving a 12-month section 9 bond. • The one supply prohibited drug > small and < = indictable quantity charge involving 1.0 gram of ecstasy (20 tablets) resulted in a four month gaol term. An appeal on the severity of the sentence has been lodged. • None of the five supply prohibited drugs > indictable quantity (not cannabis) charges have been determined at court. Persons found with drugs Most people detected with prohibited drugs during operations were found in possession of small amounts of cannabis. In addition, the majority of people found with drugs had little or no previous contact with the criminal justice system. A total of seven persons were charged with supply prohibited drug offences. Four of the seven persons were found with indictable quantities of drugs. A total of 18 persons were found in possession of amphetamine during the review period. Of these, five were heavy vehicle drivers including one driver with an indictable quantity of 11.0 grams. In addition, a driver of a Pantec truck was charged and convicted with drive under the influence of amphetamine and cannabis. Similarities and differences between the border areas and drug detection trials In many respects the two trials yielded similar results. For example, the rate of searching vehicles stopped (8%) and the rate of finding drugs in all vehicles stopped (2%) was the same in both trials. Also, indictable quantities of drugs were located in two separate vehicles during the border areas trial and in three separate vehicles during the drug detection trial. In addition, the most common legal action in both trials was the issue of a cannabis caution, which demonstrates that police mostly seized small amounts of cannabis during the review periods for both trials. Interestingly, the total amount of drugs seized during the border areas trial was much higher (4799.81 grams of cannabis and 1025.41 grams of amphetamine) than during the drug detection trial (1490.39 grams of cannabis and 68.08 grams of amphetamine). However, it should be noted that amounts of ecstasy (15.5 grams in total), cocaine (11.94 grams in total) and nexus (1.39 grams in total) were also seized during the drug detection trial. There were no successful prosecutions for drug supply as a result of the border areas trial. As a result of the drug detection trial, two persons have been successfully prosecuted for supply prohibited drug involving 22.3 grams and 426.0 grams of cannabis respectively. A further four persons are facing a total of seven supply charges with six of the charges involving indictable quantities of drugs (9.5, 11.0 and 12.5 grams of amphetamine; 10.7 grams (40 tablets) of ecstasy; 6.74 grams of cocaine; and 1.39 grams of nexus). At the time of finalising this report, these charges had yet to be determined at court. NSW Ombudsman Review of the Police Powers (Drug Detection Trial) Act 2003 iii
Issues identified during the drug detection trial Examination of process for granting authorisations Our examination of the 23 authorisations granted revealed that most applications for authorisation contained a wide variety of credible intelligence and evidence of previous seizures to justify the grant of an authorisation by the NSW Police Force designated officer. In addition, there was a high degree of compliance with the legislative requirements for applications and the grant of authorisation. However, we had some concerns about the low level of compliance with the report back requirement given the need for designated officers to be apprised of the results of previous operations when considering the likelihood of success of future operations. Rate of finding drugs The rate of finding drugs after an indication by a drug detection dog was 23%. That is, during the review period, police did not locate drugs in over three quarters of the searches of vehicles and/or their occupants after a drug detection dog indication. The low rate of finding drugs after a drug detection dog indication has the capacity to undermine public confidence in the ability of drug detection dogs to accurately detect the scent of prohibited drugs. It may also call into question the police practice of relying on a drug detection dog indication as one of the factors relevant to the formation of the requisite reasonable suspicion to search a person and/or vehicle. There are a number of possible reasons why the rate of finding drugs is low including the fact that drug detection dogs appear to indicate the scent of cannabis smoke and prescription drugs. The low rate of finding drugs might also be a result of officers not conducting thorough searches or simply that the dogs sometimes make mistakes. One suggestion to instil public confidence in the dogs’ ability to accurately detect the scent of drugs is to independently validate the training methodology currently utilised at the Dog Unit. That is, determine the accuracy of dogs in a controlled environment in the absence of factors that may be impacting on the rate of finding drugs. In our view, there may be some merit in a validation program but only if issues associated with indications on cannabis smoke, prescription drugs and other residual scents are addressed. We appreciate this may be a complicated task given, for example, the lack of any clear evidence about whether dogs trained to detect the scent of dried, unburnt cannabis also detect the scent of burnt cannabis. However, it is clearly necessary given the unacceptably high proportion of usually very public and potentially embarrassing searches conducted by police that do not result in the seizure of drugs. Inaccurate records of searches on the police computer system Our examination of search records revealed that police generally recorded searches appropriately. However, we discovered some examples of inaccurate and potentially misleading recording of searches for one operation. Almost two-thirds (22 of 35) of the search records created by police contained an incident category ‘Actual Drug Detection’ with a further classification ‘Other Drug Detection/Seizure Offence’ in circumstances where no drugs were seized and no drug offence detected. The NSW Police Force has undertaken to review and amend the records given their potential to prejudice a person’s future dealings with police and the fact that these records are used to compile statistics on drug detections published in the NSW Police Force Annual Report. Reasonable suspicion to search a person The Drug Detection Trial Act did not create any new search powers for police. In order to lawfully search a person and/or vehicle, a police officer must first suspect on reasonable grounds that the person is in possession of, or the vehicle contains a prohibited drug. During the review we came across examples where police appeared to search persons based on a suspicion that the person was recently in possession of a drug or near people who had been using drugs. In our view, this interpretation of the law is too broad. Arguably what is required is that person is currently in possession of a prohibited drug. We note that the NSW Police Force is in the process of implementing new procedures advising police that a drug detection dog indication on its own does not give a police officer the requisite reasonable suspicion to search a person. We also note that the procedures document for the Drug Detection Trial notes that there must be a factual basis for police to reasonably suspect the presence of a prohibited drug on the person or in the vehicle to be searched. iv NSW Ombudsman Review of the Police Powers (Drug Detection Trial) Act 2003
Page 1 and 2: Review of the Police Powers (Drug D
Page 3 and 4: Any correspondence relating to this
Page 5 and 6: 2 June 2008 Level 24 580 George Str
Page 7 and 8: Foreword The vehicular trafficking
Page 9 and 10: Chapter 4. Issues identified during
Page 11: or is to be, used on a regular basi
Page 15 and 16: Conclusion A critical examination o
Page 17 and 18: viii NSW Ombudsman Review of the Po
Page 19 and 20: The bill proposed a number of chang
Page 21 and 22: 4 NSW Ombudsman Review of the Polic
Page 23 and 24: In addition, if the authorisation i
Page 25 and 26: 2.1.9. Reporting and record keeping
Page 27 and 28: If the drug detection dog indicates
Page 29 and 30: 41 Police Powers (Drug Detection Tr
Page 31 and 32: 3.2. Number of vehicles and persons
Page 33 and 34: Table 3 details drugs seized, legal
Page 35 and 36: Local area command/s where operatio
Page 37 and 38: One person was charged with resist/
Page 39 and 40: In addition, a driver of a Pantec t
Page 41 and 42: 118 Pursuant to s.12 of the Crimes
Page 43 and 44: Getting an authorisation is a lengt
Page 45 and 46: (b) the likelihood of success of th
Page 47 and 48: Case study 1 Grant of authorisation
Page 49 and 50: 4.1.5. Capacity of designated offic
Page 51 and 52: The officer will then stop each veh
Page 53 and 54: mindful to ensure that they do not
Page 55 and 56: We raised this issue during the bor
Page 57 and 58: In circumstances where a person sea
Page 59 and 60: During pre-operational briefings Om
Page 61 and 62: In addition, boredom, motivation, f
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Case study 7 No drugs located, no a
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Case study 9 Persons searched withi
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4.7.2. Police views A number of sen
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However, the NSW Police Force noted
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203 See paragraph 12.4 ‘Requestin
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56 NSW Ombudsman Review of the Poli
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• One or more drugs were located
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… the nature of the legislation a
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We also got some specific [intellig
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I think that was something that rea
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… if they’re serious about the
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This view was echoed by officers co
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We raised the issue of regional sta
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Table 4. Operational costs Operatio
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5.7.2. Community support 5.7.2.1. P
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According to survey participants, t
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Case study 14 Delayed by search 457
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… a reduction in costs and resour
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Case study 17 Police seize $875,000
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366 Interview A transcript, pp.18-1
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86 NSW Ombudsman Review of the Poli
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There are also a number of seemingl
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Appendix 1. Memorandum of Understan
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MOU between NSW Police and the Ombu
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Other information requirements
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Appendix 4. Sample of an authorisat
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106 NSW Ombudsman Review of the Pol
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Appendix 6. Telephone survey tool.
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Acknowledgments This report was res
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